On
September 15, 2017, the Court filed a Memorandum under seal.
Dkt. No. 89. On September 22, 2017, the parties informed the
Court that they agree that the Memorandum may be unsealed.
Dkt. No. 92.

Also on
September 22, Defendants Bestway (USA), Inc., and Bestway
Inflatables and Materials Corp. filed a letter pursuant to
Local Rule 7.1(j) requesting permission to file a motion for
reconsideration. Dkt. No. 91 (“Ltr.”). Plaintiffs
oppose the request. See Dkt. No. 93. Defendants seek
leave to move for reconsideration of the Court's decision
to deny Defendants' motion for summary judgment and to
allow Plaintiffs to move to amend their complaint. Defendants
claim that “it was not until 11 days before the end of
discovery that Plaintiffs revealed the factual information in
the Complaint, which provided the grounds on which their
claim rests, did not exist, and instead planned to pursue a
different breach of contract theory.” Ltr. 1. They
argue that it was manifest error to deny summary judgment
because Plaintiffs had not proved the exact contract terms
pleaded in Count II. They cite cases in which courts have
granted summary judgment and declined to condone a
plaintiff's too-late assertion of claims not pleaded in
the complaint.

Defendants
asserted similar arguments in their motion for summary
judgment. See Dkt. No. 52, at 11-14 (arguing that
“[a]fter 18 months of litigation, Plaintiffs, for the
first time- during Menard's January 2017
deposition-revealed that the sales representative agreement
at issue was not what was alleged in the Complaint, but was a
January 2012 oral agreement entered into by Menard and Kwok
which provided Menard a 3% commission on all net shipments
related to the Target account”). In deciding
Defendants' motion for summary judgment, the Court
considered the arguments but determined that the facts of
this case did not merit the result urged by Defendants, which
was entering judgment in their favor on all counts, Sept. 15,
2017 Mem., Dkt. No. 89, at 13-14, nor did it merit granting
summary judgment on Count II, the breach of contract claim,
id. at 12-13.

The
legal citations in Defendants' letter neither compel a
different result nor convince the Court that a different
result is merited. The pleading requirements of the Federal
Rules of Civil Procedure set a “low standard”
that serves the purpose of “giv[ing] the opposing party
fair notice of the nature and basis or grounds for a claim,
and a general indication of the type of litigation
involved.” N. States Power Co. v. Fed. Transit
Admin., 358 F.3d 1050, 1056-57 (8th Cir. 2004) (quoting
Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d
707, 714 (8th Cir.1979)). It is true that the Rules do not
“entitle parties to manufacture claims, which were not
pled, late into the litigation for the purpose of avoiding
summary judgment.” Id. at 1057. This case,
however, is easily distinguishable from Northern
States, in which plaintiffs had failed to plead the
cause of action that they sought to advance at summary
judgment, and further failed to plead anything at all that
“would have notified the Defendants of this
claim.” Id.; see also S & A Farms,
Inc. v. Farms.com, Inc., 678 F.3d 949, 953 (8th Cir.
2012) (holding that plaintiff did not provide the defendant
fair notice and failed to sufficiently plead a
fraudulent-inducement claim where the complaint did not
affirmatively state that theory, use the word “induce,
” or use language tracking the statutory provision).
Here, Plaintiffs pleaded a breach of contract claim, so this
is not a case in which a party attempts to belatedly append a
new cause of action. Moreover, they alleged a contract
between them and Defendants regarding Plaintiffs' sales
representative work for Defendants with respect to a
particular retailer beginning in 2012, with commission rates
that included 3% in 2015. As to these allegations, the Court
found that Plaintiffs pointed to facts in the record that
show genuinely disputed issues of fact. See, e.g.,
Dkt. No. 89, at 12 (noting disputes about “whether the
commission payments that were made were calculated correctly
and whether Defendants should have paid commissions on 2015
sales”).

Defendants
object that although the Complaint also pleaded contract
terms for 2% commissions in 2013 and 2014, Menard testified
at his deposition that he reached an oral agreement for 3%
commissions beginning in 2013. In its Memorandum, the Court
acknowledged the discrepancy as to these particular terms,
and it will reiterate that Defendants might be able to use
the pleading with some force against Plaintiffs at trial as
an admission. But this variation as to some terms of
the alleged contract does not mandate granting
Defendants' summary judgment motion on the
breach-of-contract claim or on all counts. The substantial
overlap between the allegations and the record at summary
judgment, as described above, indicate that Defendants had
fair notice of the nature of and basis for Plaintiffs'
claims. Other factors confirm this conclusion and indicate
that Defendants were able to prepare a defense to the
Complaint. The gravamen of Defendants' defense is that
they never came to any agreement with Plaintiffs and, rather,
had a contract with a third party, Tom Strauss's company,
believing Menard to have been an employee of that company.
Defendants deny that there was ever any oral agreement
reached between Menard and the previous leader of Bestway
(USA), Inc., Danny Kwok. The record reflects that Defendants
were able to anticipate the oral agreement theory quickly
after being served with Plaintiffs' Complaint. In his
deposition, which took place before Menard's
deposition, current Bestway (USA), Inc., CEO Patrick
Fumagalli denied any agreement between Kwok and Menard and
explained that “when the case came to our attention,
” he reached out to Kwok to ask if Kwok had reached any
agreement-oral or otherwise-with Menard. Sheehan Decl. Ex. A
94:24-95:22, Dkt. No. 54. As for the defense theory that
Defendants contracted solely with Strauss's company on
the understanding that Menard was its employee, the record
similarly reflects that Defendants were able to identify the
theory early on, see, e.g., Sheehan Decl. Ex. Q,
Dkt. No. 53-7, and pursue it through discovery. Defendants
were even able to depose Strauss after deposing Menard.
Compare Sheehan Decl. Ex. C, Dkt. No. 56 (Menard
deposition on January 20, 2017), with Id. Ex. B,
Dkt. No. 55 (Strauss deposition on February 7,
2017).[1] In summary judgment briefing and in their
letter, see Ltr. 2 n.1, Defendants did not identify
any discovery that they were unable to take or any other
specific way they have been prejudiced in the preparation of
their defense by the 2%-contract-term variation. The Court
concludes that the Complaint's allegations gave them fair
notice of the breach of contract claim.

For
these reasons, the Court denies Defendants' letter
request for permission to file a motion for reconsideration.

Based
on the files, records, and proceedings herein, and for the
reasons stated above, IT

IS
ORDERED THAT:

1. The
Clerk of Court is DIRECTED TO UNSEAL the Memorandum (Written
Opinion) at Dkt. No. 89.

[1] In addition, Plaintiffs assert that in
November 2016, in a response to an interrogatory seeking
facts about the agreement alleged in the Complaint,
Plaintiffs described an agreement to pay a 3% commission ...

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